UPDATED ON OCT 24, 2012
This webpage, including the terms and conditions set forth in Sections 1 to 11 below (the “Agreement”), contains the agreement between Scend, LLC, d/b/a Rich Dealer’s Institute, a Florida limited liability company, and its affiliated entities (“Licensor”) and those third party dealership entities who have: completed and submitted a Rich Dealers Success Commitment and Authorization form; or received one or more packages containing marketing and advertising materials made available by Licensor (each being a “Licensee”), concerning the relationship between Licensor and Licensee and Licensee’s utilization, from time to time, of the ideas, trade secrets, know how, copyrighted materials and other intellectual property that may be made available, from time to time, by Licensor to Licensee.
In addition to Licensee’s initial agreement to be bound by the terms and conditions of this Agreement at the time of the execution of the Rich Dealers Success Commitment and Authorization form, each time Licensee or its employees, agents or contractors opens any package containing marketing and advertising materials made available by Licensor Licensee hereby renews its agreement and intent to be bound by the then current terms and conditions contained below.
Licensee acknowledges that this Agreement contains, among other things, provisions concerning VENUE, CHOICE OF LAW, LIMITATIONS OF LIABILITY, LIMITATIONS OF WARRANTIES AND WAIVER OF JURY TRIAL.
BACKGROUND
Licensor has developed, continues to develop, and owns the rights in and to: (1) that certain mark “For the People” concerning automobile dealership marketing and operations; (2) copyrights and know-how in and to advertisements and related creative materials, and media placement and purchase methodologies. Licensor also owns and operates a consulting and information business for automobile dealers known as “Rich Dealers Institute.”
Licensee engages, and has, for a substantial time prior to entering this Agreement, engaged, in the automobile dealership business. Licensee is also a member in good standing of the “Rich Dealers Institute,” desires to use the Materials and Mark and has agreed to abide by the terms and conditions of the “Rich Dealers Institute” code of ethics.
AGREEMENT
NOW THEREFORE, the parties agree as follows:
1. License to Mark and Materials.
1.1 License Grant with Limited Exclusivity. On the terms and conditions set forth herein as of the Effective Date and for the Term (as defined in section 1.5), Licensor hereby grants to Licensee a non-transferable license to: (A) use the Mark and the Materials (both as defined on below) solely: (1) within the Territory (as defined on Success Commitment and Authorization Form) and (2) for, and directly in connection with, securing customer prospects for the automobile dealership doing business at the Location in accordance with the Code of Ethics; and (B) to make derivative works of the Materials (the “Derivative Works”) only by adding information specific to Licensee’s business operations or otherwise modifying the Materials to meet and comply with all of the legal, regulatory, contractual and other requirements and obligations applicable to Licensee and its business and advertising operations; and (C) to copy and make reproductions of the Mark and the Materials for use solely in connection with the activities described in (A) above; provided that: (1) any third party engaged to make any copy or reproduction or otherwise utilize any Mark or Material for the benefit of Licensee (a “Licensee Vendor”) shall be advised, in writing by Licensee, that the Mark and the Materials and the copyrights and other intellectual property therein are the sole property of Licensor; and (2) Licensee shall notify Licensor, in writing, of the name, contact information and dates of utilization of each Licensee Vendor no later than the date Licensee first engages such Licensee Vendor concerning any of the Mark(s) or the Materials; ((A) and (C) being the “Licensed Rights”).
Licensor shall not grant any third party the right to exercise the Licensed Rights in the Territory during the Term. Licensee shall be responsible for and timely pay all costs incurred in connection with the exercise of the Licensed Rights. “Mark” means “For the people” and any other trademark(s), trade name(s) or service mark(s) that Licensor, by written notice from Licensor specifically referencing this Agreement, makes subject to the terms and conditions hereof. “Materials” means those advertisements and related materials described on Exhibit A hereto together with any of the foregoing that Licensor, by written notice from Licensor specifically referencing this Agreement, makes subject to the terms and conditions hereof. Licensee shall exercise the Licensed Rights in good faith strictly in accordance with the Code of Ethics so as to maximize the value of and goodwill associated with the Marks and the Materials and not to damage or otherwise negatively affect the value of the Marks or the Materials.
1.2 Grant Back. Licensee hereby assigns to Licensor all right, title and interest in and to Derivative Works and all intellectual property arising from or out of the exercise of the Licensed Rights at no cost to Licensor.
1.3 No Requirement to Exercise Licensed Rights. LICENSEE SHALL HAVE NO OBLIGATION WHATSOEVER TO EXERCISE ALL OR ANY PART OF THE LICENSED RIGHTS AND SHALL BE SOLELY RESPONSIBLE FOR DETERMINING IF, WHEN AND WHETHER TO DO SO, AND THE EXTENT OF DOING SO.
1.4 Limitations. The Licensed Rights do not include the grant to Licensee of any right to engage in any other activity relating to any other intellectual property of Licensor or concerning any Mark or the Materials, including, without limitation: (A) modification, amendment or enhancement; or (B) the right to adopt or utilize any mark that is deceptively similar to, or would cause confusion with, a Mark. Licensee acknowledges the Licensor has not made, and will not make, any determination or representation or warranty that the use of the Mark(s) or the Materials, in whole or in part, complies with or is permissible by Licensee and LICENSEE IS SOLELY RESPONSIBLE FOR DETERMINING THAT THE EXERCISE OF THE LICENSED RIGHTS, IN WHOLE OR IN PART, AND OPERATION OF LICENSEE’S BUSINESS IN ACCORDANCE WITH THE CODE OF ETHICS ARE IN FULL COMPLIANCE WITH THE APPLICABLE LEGAL, REGULATORY, CONTRACTUAL AND OTHER REQUIREMENTS APPLICABLE TO LICENSEE.
1.5 Licensor Property. Licensee agrees and acknowledges that the Mark and the Materials shall at all times remain the sole and exclusive property of Licensor and that the use of the Marks shall inure to the benefit of Licensor, and Licensee waives and relinquishes any and all interests or rights Licensee may have or hereafter acquire therein in favor of Licensor.
2. Term and Termination. The term (the “Term”) of this Agreement shall commence on the date indicated on the Success COmmitment and Authorization Form and continue until the earlier of the time that: (A) Licensee is no longer a member of Licensor’s “Rich Dealers Institute” program (the “Program”), for any cause or reason whatsoever; (B) Licensee terminates this Agreement by written notice to Licensor; or (C) ninety (90) days after written notice from Licensor this it is terminating the Program. Licensor may terminate Licensee upon written notice for cause. Upon a termination of this Agreement for any cause or reason whatsoever, Licensee shall: immediately cease exercising the Licensed Rights, including, without limitation, the utilization of any Mark(s); and refrain from expressing (or causing others to express) to any third party any derogatory or negative opinions or statements concerning Licensor, its business operations, products and services, officers, directors, employees, the Mark and the Materials.
3. WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREINBELOW, LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER, INCLUDING, BUT NOT LIMITED TO: ANY WARRANTY OF MERCHANTABILITY; ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; ANY WARRANTY CONCERNING INTELLECTUAL PROPERTY INFRINGEMENT; OR ANY WARRANTY THAT ANY OF THE MARKS OR MATERIALS CAN BE LAWFULLY UTILIZED BY LICENSEE IN ITS BUSINESS OPERATIONS. Licensor warrants only that the Materials were independently created and developed by or for Licensor.
4. LIMITATION OF LIABILITY. EXCEPT FOR INFRINGEMENT OF LICENSOR’S INTELLECTUAL PROPERTY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, OR INJURY TO PROPERTY. EACH PARTY ACKNOWLEDGES THAT THIS SECTION REFLECTS AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT, THAT SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES, AND THAT THE ECONOMIC AND OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
5. Restrictive Covenant. Licensee and each person participating in the Rich Dealers Institute on behalf of Licensee (collectively being the “Restricted Parties”) hereby each agree that none of them shall: (A) ever: (1) disclose or allow any person or entity to have access to any Confidential Information (as defined below); or (2) make any use, commercial or otherwise, of any Confidential Information, except solely during the Term of this Agreement in connection with the exercise of the Licensed Rights or the operation of Licensee’s business; and (B) for the Term of this Agreement and a period of two (2) years after the termination of this Agreement, by whatever means and without regard to cause, not engage in, carry on, otherwise participate in, or have any interest in any group, organization, facility, venture or other entity or arrangement which engages in or carries on, providing marketing and advertising coaching or consulting services or advertising creative materials to car dealers (the “Business”) or any business activity substantially similar, in whole or in part, to the Business, whether as an employee, owner, sole proprietor, shareholder, independent contractor, partner, member, agent, officer, director or otherwise, in the United States; and (C) solicit, hire, compensate or engage as an employee, agent, contractor, shareholder, member, joint venturer, or consultant, whether or not for consideration, any of Licensor’s employees, subcontractors, or former employees; and (D) solicit, render services to, or accept business from any Customer or Former Customer or any of their subsidiary or parent entities or affiliates for any business activity. “Confidential Information” means the proprietary and non-public information of Licensor, including Licensor’s know-how and trade secrets disclosed in connection with the Rich Dealers’ Institute programs and materials.
6. Entire Agreement, Waiver and Modification, Captions and Partial Invalidity. This Agreement sets forth the entire understanding of the parties concerning the subject matter of this Agreement and incorporates all prior negotiations and understandings. There are no covenants, promises, agreements, conditions or understandings, either oral or written, between them relating to the subject matter of this Agreement other than those set forth herein. No purported waiver by any party of any default by another party of any term or provision contained herein shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein. Except as set forth below, no alteration, amendment, change or addition to this Agreement shall be binding upon any party unless in writing and signed by the party to be charged; provided that the foregoing shall not be deemed to apply to the terms and conditions of the Program. The captions and paragraph letters appearing in this Agreement are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of this Agreement. If any term or provisions of this Agreement, or the application thereof to any person or circumstance, shall be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances, other than those as to which it is held invalid, shall both be unaffected thereby and each term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
7. Notices. Any consent, waiver, notice, demand, request or other instrument required or permitted to be given under this Agreement other than day-to-day business communication shall be in writing and deemed to have been properly given upon: (A) actual delivery if hand delivered; (B) the next business day after transmission by overnight express courier service (e.g., Federal Express), freight prepaid to the address for such party set forth herein; or (C) three (3) business days after being sent by certified United States mail, return receipt requested, postage prepaid, to the address for such party set forth herein. Either party may change its address for notices in the manner set forth herein.
8. Applicable Law, Jurisdiction, Venue and Forum. This Agreement shall be construed and governed under and by the laws of the State of Florida for contracts entered and to be performed within the State of Florida. The parties agree that, except for third party actions, exclusive venue for any legal action authorized hereunder shall be in Orange County, Florida, and jurisdiction shall be vested in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, or the United States District Court for the Middle District of Florida, Orlando Division, as the case may be. Both parties agree not to contest the venue set forth herein and not to contest the exercise of personal jurisdiction over the parties by any of the foregoing courts. The parties hereby waive all rights concerning the exercise of personal jurisdiction of them by the foregoing courts.
9. WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR INDIVIDUAL AND COLLECTIVE RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO OR ARISING OUT OF THIS AGREEMENT, THE MARK AND THE MATERIALS.
10. Attorney’s Fees. In the event any litigation, mediation, arbitration, or controversy between the parties hereto arises out of or relates to any of Sections 1.2, 1.4, 1.5, 3, 4, 5, 8 or 9 of this Agreement, the prevailing party shall be entitled to recover from the other all of its reasonable attorneys’ fees, expenses and suit costs, including those associated with appellate and post-judgment collection proceedings.
11. Survival. Sections 1.4, 1.5, and 3 through 10 shall survive the termination, cancellation or expiration of this Agreement by whatever means for whatever reason.